Citation Nr: 1124882
Decision Date: 06/30/11 Archive Date: 07/06/11
DOCKET NO. 10-14 559 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York
THE ISSUE
1. Whether new and material evidence has been received sufficient to reopen a previously-denied claim of service connection for a right knee disorder.
2. Whether new and material evidence has been received sufficient to reopen a previously-denied claim of service connection for a left shoulder disorder.
3. Entitlement to service connection for a lumbar spine disorder, claimed as secondary to a knee disorder.
4. Entitlement to service connection for sciatica/neuropathy of the bilateral lower extremities, claimed as secondary to a knee disorder.
5. Entitlement to service connection for a cervical spine disorder, claimed as secondary to a shoulder disorder.
6. Entitlement to service connection for neuropathy of the left upper extremity, claimed as secondary to a shoulder disorder.
7. Entitlement to service connection for depression, claimed as secondary to all other disorders.
REPRESENTATION
Appellant represented by: David L. Huffman, Attorney
WITNESSES AT HEARING ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Counsel
INTRODUCTION
The Veteran served on active duty from April 1978 to February 1980.
This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.
In August 2010, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing is of record.
The issues of entitlement to a total disability rating based on individual unemployability (TDIU); whether an August 13, 1980, rating decision, which denied the Veteran's claim for entitlement to service connection for a right knee disorder, was the product of clear and unmistakable error error (CUE); and whether a May 25, 2006, rating decision, which denied the Veteran's claim for entitlement to service connection for a left shoulder disorder, was the product of CUE have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
The issues of entitlement to service connection for a right knee disorder, left shoulder disorder, lumbar spine disorder, sciatica/neuropathy of the bilateral lower extremities, cervical spine disorder, neuropathy of the left upper extremity, and depression are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In an August 1980 decision, the RO denied the Veteran's claim of service connection for a right knee disability; that decision was confirmed and continued in rating decisions dated in August 2002, June 2005, and May 2006, and those decisions are final.
2. Evidence submitted since the RO's May 2006 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability, and therefore raises a reasonable possibility of substantiating the claim of service connection for a right knee disability.
3. In a May 2006 decision, the RO denied the Veteran's claim of service connection for a left shoulder disability; that decision is final.
4. Evidence submitted since the RO's May 2006 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a left shoulder disability, and therefore raises a reasonable possibility of substantiating the claim of service connection for a left shoulder disability.
CONCLUSIONS OF LAW
1. The August 1980, August 2002, June 2005, and May 2006 rating decisions denying service connection for a right knee disability are final. 38 U.S.C.A. § 7105 (West 2002).
2. New and material evidence has been received since the RO's May 2006 rating decision which denied service connection for a right knee disability; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).
3. The May 2006 rating decision denying service connection for a left shoulder disability is final. 38 U.S.C.A. § 7105 (West 2002).
4. New and material evidence has been received since the RO's May 2006 rating decision which denied service connection for a left shoulder disability; thus, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is reopening the claims. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.
The Veteran seeks to reopen previously-denied claims of service connection for a right knee disorder and left shoulder disorder.
Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered.
Here, by way of history, the Veteran filed his initial claim for entitlement to service connection for a right knee disorder in March 1980. However, this claim was denied in an August 1980 rating decision on the basis that there was no musculoskeletal disability noted in his service treatment records. The Veteran petitioned to reopen his claim in March 2002, but the RO found that new and material evidence sufficient to reopen the claim had not been submitted in an August 2002 rating decision. The Veteran again petitioned to reopen his right knee disorder claim in June 2004, but the RO declined to reopen his claim in a June 2005 decision on the basis that new and material evidence sufficient to reopen the claim had not been submitted. In July 2005, the Veteran filed his initial claim for entitlement to service connection for a left shoulder disorder and also petitioned to reopen his right knee claim. In a May 2006 decision, the RO denied entitlement to service connection for a left shoulder disorder on the basis that, although service treatment records revealed complaints of left shoulder pain in 1978, there was no evidence that he was diagnosed with a chronic left shoulder disorder in service. The May 2006 decision also found that the Veteran failed to submit new and material evidence sufficient to reopen his claim for entitlement to service connection for a right knee disorder. The Veteran did not appeal the May 2006 rating decision.
The Veteran's current claims were received in December 2007. Although the Veteran alleged clear and unmistakable error in the August 13, 1980, and May 25, 2006, rating decisions which denied his initial claims for entitlement to service connection for a right knee disorder and a left shoulder disorder, respectively, the RO instead adjudicated these claims as if they were claim to reopen based on new and material evidence.
In support of his December 2007 claims, the Veteran continued to assert that his current right knee and left shoulder disorders began during service, and have bothered him ever since. VA outpatient treatment records added to the file since the prior denials of service connection document continuing treatment for knee arthralgia and joint pain in the shoulder region.
Additional evidence added to the file since the last prior final denial also includes several lay statements from the Veteran's family and pastor. Specifically, in a December 2007 statement, the Veteran's brother indicated that the Veteran was an active person involved in basketball, baseball, and running prior to his period of active duty service, but that upon his return from service in February 1980 his knees and shoulder began to cause problems to the point where the Veteran was unable to work anymore. Importantly, the Board notes that in determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").
In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In essence, at the time of the prior final denial, although the evidence of record showed the existence of isolated incidents of a twisted right knee and left shoulder pain, there was no evidence that these disabilities were chronic rather than acute and transitory in nature. The Board emphasizes that whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337.
The additional evidence added to the claims file since the prior denial is new and material. It includes competent evidence that raises the possibility that the Veteran's in-service incidents of a twisted right knee and left shoulder pain shared a common continuity of symptomatology with his current right knee and left shoulder disorders.
Evidence submitted since the RO's May 2006 decision, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claims, and raises reasonable possibilities of substantiating the claims. New and material evidence has thus been received since the RO's May 2006 decision; reopening the claims of service connection for a right knee disorder and left shoulder disorder is therefore warranted. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156.
ORDER
New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a right knee disorder having been submitted, the claim is reopened.
New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for a left shoulder disorder having been submitted, the claim is reopened.
REMAND
Having reopened the claims of service connection for right knee and left shoulder disorders, the Board must now address these claims on the merits. Unfortunately, the Board finds that additional development of these claims must be accomplished before a decision can be rendered.
In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.
With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Here, the Veteran was afforded VA joints examinations in September 2005 and March 2006. At the Veteran's September 2005 examination, which focused on his left shoulder disorder, the examiner diagnosed him with degenerative disc disease of the left shoulder. However, when asked to provide an etiological opinion, the examiner indicated that, "Based on the information available it cannot be determined if the present shoulder condition is related to the single episode of left shoulder pain in 1978 without mere speculation. If the Veteran can obtain the reports of other medical evaluations, it may be helpful to some extent." At his March 2006 examination, which focused on his right knee disorder, the Veteran was diagnosed with degenerative disease and a Baker's cyst of the right knee. However, the examiner did not offer any opinion as to the etiology of the right knee disorder.
The Court has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court also has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). The Court has explained that opinions which contain the "mere speculation" language, without more, amount to 'nonevidence' neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). The Court recently held in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90. See also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development.
Here, the Board observes that a review of the September 2005 VA joints examination report shows the examiner did not sufficiently explain the reasons for his inability to provide a nexus opinion without speculation. In addition, as discussed above, the March 2006 VA joints examination report did not contain an opinion as to the probable etiology of the Veteran's current right knee disorder. As such, additional opinions are needed to resolve the questions as to whether the Veteran's in-service right knee injury and left shoulder pain played any role in his current right knee disorder and left shoulder disorder.
In addition, the Veteran has claimed entitlement to service connection for lumbar spine disorder, sciatica/neuropathy of the bilateral lower extremities, cervical spine disorder, neuropathy of the left upper extremity, and depression. Significantly, he has asserted that all of these disabilities either developed secondary to or are aggravated by his current right knee and left shoulder disorder. The Board notes that, because adjudication of the Veteran's service connection claim for right knee and left shoulder disorder may affect adjudication of these additional claims, all of these claims are inextricably intertwined. As such, the issue of entitlement to service connection for lumbar spine disorder, sciatica/neuropathy of the bilateral lower extremities, cervical spine disorder, neuropathy of the left upper extremity, and depression must be held in abeyance pending completion of the development outlined below. See Harris v. Derwinski, 1 Vet. App. 180. 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).
Finally, the Board notes that testimony given at the Veteran's August 2010 Travel Board hearing indicated that he is in receipt of Social Security Administration (SSA) disability benefits. The underlying SSA records have not been obtained for the file. The United States Court of Appeals for Veterans Claims (Court) has held that VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim. See Dixon v. Gober, 14 Vet. App. 168, 171 (2000); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). However, in Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the Federal Circuit held that VA's duty to obtain SSA records was not absolute, and that the duty only extends when the records are believed to be relevant. Here, because the Veteran's representative suggested that the disorders for which he receives SSA disability benefits are the same disorders for which he now seeks service connection, the potential relevancy of the SSA records cannot be ignored. These records are necessary for review before a decision may be made regarding his claims.
Accordingly, the case is REMANDED for the following action:
1. The RO should obtain and associate with the claims file all pertinent VA records dating from March 2010 to the present from the Bath VA Medical Center in Bath, New York. If the Veteran identifies additional private treatment records pertinent to his claims on appeal, the RO should attempt to obtain those records provided that authorization is provided.
2. The RO should also obtain a copy of all the medical treatment records from the Social Security Administration (SSA) that were used in considering the Veteran's claim for Social Security disability benefits and associated with the claims file. Any negative response should be included with the claims file.
3. The RO should then schedule the Veteran for a VA orthopedic examination to determine the current nature and likely etiology of any right knee and left shoulder disorders. All indicated tests should be completed. The claims file, including a copy of this remand and the August 2010 hearing transcript, should be made available to and reviewed by the examiner in conjunction with the examination. Based on a review of the entire record, including, but not limited to, the Veteran's service treatment records, SSA records and the Veteran's statements as to continuity of right knee and left shoulder symptoms since service, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher likelihood) that any current right knee and/or left shoulder disorders had their onsets during service or are otherwise related to the documented in-service injuries. The examiner is also asked to comment specifically on the September 2005 VA treatment note where the Veteran's orthopedic surgeon indicated, "Given the history he has of the knee injury and what documentation exists on the record, this certainly, in my opinion, would be a service connected problem."
In giving the opinions, the examiner must take into consideration the lay statements of record regarding the continuity of right knee and left shoulder symptoms since the service injuries/complaints. The examiner should state whether his opinion would be different if it is found that the Veteran had continuity of right knee and left shoulder symptoms since his discharge from service. In giving the opinion, the examiner should also take into consideration the Veteran's service medical records, postservice medical records, diagnostic studies, and the Veteran's history of a postservice fall in which he injured the shoulder.
A complete rationale should accompany all opinions expressed. If the examiner is unable to provide any opinion without resort to speculation, he or she must state why this is so.
4. If service connection for either a right or left shoulder disability is granted, schedule the Veteran for examinations on the remaining issues on appeal to determine whether the disability was caused by or aggravated by the newly service-connected right knee and/or left shoulder disability.
5. After completion of the above and any additional development deemed necessary, the RO should readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs